NAFR Reserved on 24/01/ 2025 Delivered on 23/04/2025 HIGH COURT OF CHHATTISGARH, BILASPUR Cr.A.No. 200/2003 Suman @ Munna, S/o. Subrahmaniyam, aged 25 years, Occupation – Driver, R/o. Tulsipur, Police Station – Civil Line, District Rajnandgaon (C.G.) --- Appellant Versus State of Chhattisgarh Through Police Station – Charama, District – Kanker (C.G.) --- Respondent & Cr.A.No. 263/2003 Kumari Nisha, D/o Shri Raj Bhadur, aged about 20 Years, Occupation – House Wife, R/o. Chuxhhaiyapara Railway Fatak, Bilaspur, Police Station – Thorwa, District Bilaspur (C.G.) --- Appellant Versus The State of Chhattisgarh Through The District Magistrate Bastar at Jagdalpur (C.G.) --- Respondents Cause Title is taken from CIS system _______________________________________________________________________________________________________________________________________ For Appellants : Shri Pravin Kumar Tulsyan and Ms. Anuja Sharma, Advocates. For Respondent /State : Shri Kalpesh Ruparel, Panel Lawyer. _____________________________________________________________________ Hon'ble Shri Justice Sachin Singh Rajput CAV Judgment Since these two appeals arise out of the judgment dated 12.02.2002 passed by Special Judge (NDPS Act), Bastar, District – Jagdalpur (C.G.) in Special Case No. 23/2002 convicting the accused/appellants under Section 20(B) ASHISH TIWARI Digitally signed by ASHISH TIWARI Date: 2025.04.23 17:33:13 +0530 -2- (II)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the “NDPS Act”) and sentencing accused Suman Munna to undergo RI for four years with fine of Rs. 20,000/- and accused Ku. Nisha to undergo RI for 3 years with fine of Rs. 10,000/-, plus default stipulations, they are being disposed of by this common judgment. 2. The Facts: On 28.08.2002 ASI (PW-5) then posted at Police Station Charama received a secrete information to the effect that one boy and a girl were going towards Charama on a motorcycle carrying Ganja. ASI then made an entry about the same in the Rojnamcha Sanha (Ex.P-22), forwarded the secrete information to SDO(P) Kanker vide Ex.P-23, drew the Panchnama Ex.P-3 for not being able to obtain search warrant and proceeded to the spot as per the secrete information. On inquiry being made, the accused persons disclosed their name and address. The ASI further informed the accused persons about the secrete information so received and also about their search being made as the ganja was suspected to be possessed by them. By way of notices (Ex. P-4 and P-6) accused Nisha and Suman Munna were informed of their legal rights of being searched either before the Gazetted Officer or the Magistrate, on which they gave their consent by Ex. P-5 and Ex. P-7 for being searched by the said ASI (PW-5). On such consent being obtained, the ASI and the staff with him first gave their own search to the accused/appellants under Panchnama Ex. P-8, and then made the search of their bags. On search, Ganja like substance was recovered from their bags which on being burnt, sniffed and tasted was identified to be Ganja vide Ex. P-9 and Ex. P-10. On being weighed under weighment Panchnama Ex. P-11 and Ex. P-12, the Ganja recovered from accused Nisha came out to be 6 Kg and the one recovered from accused Suman Munna to be 8 Kg. From the Ganja recovered from the accused/appellants two samples of 50 grams each were taken out and they including the remainder were sealed on the spot itself under Ex. P- 13. Ganja found in possession of accused Suman Munna was seized under Ex. P- -3- 14 and the one found in possession of accused Nisha was seized under Ex. P-15. One red colour Suzuki motorcycle was also seized from accused Suman Munna and thereafter arrest of both the accused was made. The Ganja so seized and the samples so drawn were then brought to Police Station Charama where FIR (Ex.P- 26) was recorded, and the Ganja including the samples were deposited therein. After intimating about the arrest of the accused/appellants to their family members, information about the entire proceedings taken up was given to the SDO(P) Kanker. The samples were sent to the Laboratory for chemical examination and the report received from there confirms the contraband to be Ganja. After investigation, charge sheet was filed against the accused/appellants followed by framing of charge under Section 20(B)(II)(B)of the Special Act. The accused/appellants however denied the charge and claimed trial. 3. Prosecution examined 05 witnesses and exhibited as many as 30 documents in support of its case. Statements of the accused/appellants were also recorded under section 313 of the Cr.P.C. where they pleaded their innocence and false implication in the case. 4. After hearing the parties, learned trial Court convicted and sentenced the accused/appellants as stated above. Hence these appeals. 5. Learned counsel for the accused/appellants submit that the findings recorded by the trial Court holding the accused/appellants guilty are not based on proper appreciation of the evidence on record and therefore the judgment impugned is liable to be set aside and the accused/appellants deserve acquittal. They submit that the prosecution has failed to prove that the seizure of the contraband was made from the exclusive possession of the appellants as the seizure witnesses have not supported the case of the prosecution, and therefore, in these circumstances, their conviction under the NDPS Act cannot be sustained. It is submitted that the mandatory provisions of Section 52-A of the Special Act -4- have not been complied with, and that apart, there is violation of Standing Order 01/89 dated 13.06.12989 during the course of investigation. As regards accused Nisha, it is submitted that allegedly five packets were recovered from her bag and according to the said Standing Order total 10 samples (two from each packet) were to be drawn whereas in the case in hand only four samples that too from the contraband recovered from both the accused/appellants were drawn and sent to the Laboratory. It is further submitted that the seized contraband has also not been produced before the trial Court nor any explanation for this has been given by the prosecution. It is thus submitted that this procedural irregularity on the part of prosecution renders its case absolutely doubtful and its benefit has go to the accused/appellant. Alternatively she submits that as the accused/appellant Nisha has already served about 09 months and 08 days, the sentence imposed on her may be reduced to the period which has been already undergone. As regards accused/appellant Suman Munna, it is submitted that as he has already served more than 03 years and 08 months and 01 days in jail, his sentence may be reduced to the period already undergone. It is submitted that in a case of seizure of a single package/container, one sample in duplicate should be drawn, which has not been done in this case. To buttress her submissions, she placed reliance upon the decisions of Supreme Court in the matter of Mohan Lal v. State of Punjab (2018) 17 SCC 627, in the matter of Bharat Aambale v. State of CG (CRA) No. 250 of 2025, order dated 18.01.2025, in the matter of Vijay Jain v. State of MP (2013) 14 SCC 527, in the matter of Ashok v. State of MP (2011) 5 SCC 123, in the matter of Gorakh Nath Prasad v. State of Bihar (2018) 2 SCC 350, in the matter of Vijay Pandey v. State of UP (2019) 18 SCC 215, and the decision of Division Bench of this Court in case of Rajkumar Sharma Vs. State of Chhattisgarh in Cr.A. No. 565/2023 dated 01/05/2024. 6. On the other hand, learned counsel for the State supports the judgment impugned and submits that all mandatory provisions have duly been complied -5- with and the evidence adduced by the parties has been appreciated in proper perspective while recording the finding of conviction, the same does not warrant any interference in these appeals and they are accordingly liable to be dismissed. 7. Heard learned counsel for the parties at length and perused the record with all care and caution. 8. From the evidence on record it is manifest that after receiving a secrete information the ASI (PW-5) along with his staff went to the spot and found the accused/appellants coming on a motorcycle carrying contraband in two bags. He informed them about the secrete information so received and also apprised them of their legal right of being searched either before the Gazetted Officer or before the Magistrate, on which they gave their consent for being searched by the said ASI (PW-5). On search, 6 Kg of Ganja was recovered from accused Nisha and 8 Kg from accused Suman Munna. Two samples of 50 grams each were taken out and subsequently sent for chemical examination, which was later confirmed to be Ganja. Apart from Ganja, one red colour Suzuki motorcycle was also seized from accused Suman Munna. Thus from the procedure followed by ASI (PW-5) including search after giving notice, seizure, weighment, drawing of samples and sending the same for chemical examination, it can safely be said that the mandatory provisions of the NDPS Act in particular those of Sections 42, 50, 55 and 57 have duly been complied with. The village Kotwarin (PW-1) while supporting the case of the prosecution has stated that she was informed by the police people that the Ganja was recovered from the accused/appellants. She has stated that the weighment proceedings were carried out in her presence and on that being done the Ganja recovered from accused/appellant Suman Munna came out to be 8 Kg whereas from accused/appellant Nisha it came out to be 6 Kg. She has also stated that from accused/appellant Suman Munna one motorcycle was also seized and that she signed all the relevant papers relating to the procedural -6- formalities undertaken by the Investigating Officer. Similarly, Dev Singh (PW-2) has also stated in the same terms like PW-1. He has also admitted his signatures on all the relevant documents including the seizure memo. Ashwani Kumar (PW-3) has also admitted that he signed the weighment memo Ex. P-11 and Ex. P-12. Head Constable (PW-4) is the witness who assisted in the investigation has also supported the case of the prosecution. ASI (PW-5) while supporting the case of the prosecution has stated that on receiving the secrete information he along with staff rushed to the spot, found the accused/appellants coming from Kanker on motorcycle who disclosed their identity to him, they were apprised of their right of being searched either by the Magistrate or by the Gazetted Officer on which they agreed to be searched by him, on search contraband was recovered which on weighment was found to be 14 Kg i.e. 8 Kg from accused Suman Munna and 6 Kg from accused Nisha, drew the samples and sent the same for chemical examination, which eventually was confirmed to be Ganja vide Ex. P-30. P-30. From his evidence it is also apparent that accused Nisha was searched by a lady constable Basanti Netam in compliance with the provision of Section 50 (4) of the special Act. Furthermore, no explanation has been brought forth by the accused/appellants as to how they came in possession of the contraband recovered from them and therefore it can be inferred that the illicit contraband was being taken in contravention of the provisions of the NDPS Act and therefore the law does not stand to their rescue. 9. This Court has taken note of the decisions sought to be taken support of by Ms. Anuja Sharma, Advocate but they being not compatible to the facts of this case are not of any help to accused/appellants. As regards the argument on the point of non compliance of the provisions of Section 52-A of the NDPS Act, in the matter of Bharat Aambale (supra) the Supreme Court has clearly held that mere non-compliance of this Section will not be fatal to the trial unless there are other discrepancies in the physical evidence. -7- 10. In this view of the matter, this Court is of the considered opinion that the prosecution has duly proved its case beyond all reasonable doubt and so also the trial Court has appreciated the evidence adduced by the parties in its proper perspective, and being so there appears to be nothing to interfere with the judgment impugned so far as it relates to conviction part thereof. Accordingly, the finding of conviction recorded by the Court below is hereby maintained. 11. However, looking to the fact that the incident is of the year 2002, at that time they were in their twenties, no criminal antecedents there against them brought to the notice of this Court and that one of the accused is a lady and the contraband seized from her was 2 Kg. lesser than the other accused, this Court is of the considered opinion that it would be in the interest of justice to reduce the sentence of accused Suman Munna to 02 years from that of 04 years and that of accused Ku. Nisha to 01 years from that of 03 years. Reduction ordered accordingly. 12. In the result, the appeals are partly allowed; conviction part of the judgment impugned is hereby maintained whereas the sentence is reduced as ordered in the preceding paragraph. Fine amount is maintained and default sentence is reduced to one month. Order accordingly. Conseuances to follow. 13. Copy of this order along with the record be sent to the concerned trial Court for necessary compliance. Sd/- Sd/- Sd/- (Sachin Singh Rajput) Judge Ashish/J